from a denial of the same preliminary relief. On June 19, 1970 we affirmed the denial of a preliminary injunction in Berk v. Laird, 429 F.2d 302 (2 Cir. 1970), but held that Berk's claim that orders to fight must be authorized by joint executive-legislative action was justiciable. The case was remanded for a hearing on his application for a permanent injunction. We held that the war declaring power of Congress, enumerated in Article I, section 8, of the Constitution, contains a "discoverable standard calling for some mutual participation by Congress," and directed that Berk be given an opportunity "to provide a method for resolving the question of when specified joint legislative-executive action is sufficient to authorize various levels of military activity," and thereby escape application of the political question doctrine to his claim that congressional participation has been in this instance, insufficient.

After a hearing on June 23, 1970, Judge Dooling in the district court denied Orlando's motion for a preliminary injunction on the ground that his deployment orders were constitutionally authorized, because Congress, by "appropriating the nation's treasure and conscripting its manpower," had "furnished forth the sinew of war" and because "the reality of the collaborative action of the executive and the legislature required by the Constitution has been present from the earliest stages." Orlando v. Laird, F. Supp. (E.D.N.Y. 1970).

On remand of Berk's action, Judge Judd of the district court granted the appellees' motion for summary judgment. Finding that there had been joint action by the President and Congress, he ruled that the method of congressional collaboration was a political question. Berk v. Laird, F. Supp.

(E.D.N.Y. 1970).

The appellants contend that the respective rulings of the district court that congressional authorization could be expressed through appropriations and other supporting legislation misconstrue the war declaring clause, and alternatively, that congressional enactments relating to Vietnam were incorrectly interpreted. It is the appellants' position that the sufficiency of congressional authorization is a matter within judicial competence because that question can be resolved by "judicially discoverable and manageable standards" dictated by the congres sional power "to declare War." See Baker v. Carr, 369 U.S. 186, 217 (1962); Powell v. McCormack, 395 U.S. 486 (1969). They interpret the constitutional provision to require an express and explicit congressional authorization of the Vietnam hostilities though not necessarily in the words, "We declare that the United States of America is at war with North Vietnam." In support of this construction they point out that the original intent of the clause was to place responsibility for the initiation of war upon the body most responsive to popular will and argue that historical developments have not altered the need for significant congressional participation in such commitments of national resources. They further assert that, without a requirement of express and explicit congressional authorization, developments committing the nation to war, as a fait accompli, became the inevitable adjuncts of presidential direction of foreign policy, and, because military appropriations and other war implementing enactments lack an explicit authorization of particular hostilities, they cannot, as a matter of law, be considered sufficient.

Alternatively, appellants would have this court find that, because the President requested accelerating defense appropriations and extensions of the conscription laws after the war was well under way, Congress was, in effect, placed in a strait jacket and could not freely decide whether or not to enact this legislation, but rather was compelled to do so. For this reason appellants claim that such enactments cannot, as a factual matter, be considered sufficient congressional approval or ratification.

The Government on the other hand takes the position that the suits concern a non-justiciable political question; that the military action in South Vietnam was authorized by Congress in the "Joint Resolution to Promote the Maintenance of Internal Peace and Security in Southeast Asia" (the Tonkin Gulf

1 The two district judges differed over the significance of the Tonkin Gulf Resolution, Pub. Law 88-408, 78 Stat. 384, August 10, 1964, in the context of the entire course of the congressional action which related to Vietnam. Judge Judd relied in part on the Resolution as supplying the requisite congressional authorization; Judge Dooling found that its importance lay in its practical effect on the presidential initiative rather than its constitutional meaning.

Although the Senate repealed the Resolution on June 24, 1970, it remained in effect a the time appellants' deployment orders issued. Cong. Record S. 9670 (June 24, 1970). The repeal was based on the proposition that the Resolution was no longer necessary and amounted to no more than a gesture on the part of the Congress at the time the executive had taken substantial steps to unwind the conflict, when the principal issue was the speed of deceleration and termination of the war.

Resolution) considered in connection with the Seato Treaty; and that the military action was authorized and ratified by congressional appropriations expressly designated for use in support of the military operations in Vietnam.

We held in the first Berk opinion that the constitutional delegation of the war. declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war. Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine. Baker v. Carr, supra; Powell v. McCormack, supra. As we see it, the test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question. The evidentiary material produced at the hearings in the district court clearly disclose that this test is satisfied.

The Congress and the Executive have taken mutual and joint action in the prosecution and support of military operations in Southeast Asia from the beginning of those operations. The Tonkin Gulf Resolution, enacted August 10, 1964 (repealed December 31, 1970) was passed at the request of President Johnson and, though occasioned by specific naval incidents in the Gulf of Tonkin, was expressed in broad language which clearly showed the state of mind of the Congress and its intention fully to implement and support the military and naval actions taken by and planned to be taken by the President at that time in Southeast Asia, and as might be required in the future "to prevent further aggression." Congress has ratified the executive's initiatives by appropriating billions of dollars to carry out military operations in Southeast Asia ' and by extending the Military Selective Service Act with full knowledge that persons conscripted under that Act had been, and would continue to be, sent to Vietnam. Moreover, it specifically conscripted manpower to fill "the substantial induction calls necessitated by the current Vietnam buildup."

There is, therefore, no lack of clear evidence to support a conclusion that there was an abundance of continuing mutual participation in the prosecution of the war. Both branches collaborated in the endeavor, and neither could long maintain such a war without the concurrence and cooperation of the other.

Although appellants do not contend that Congress can exercise its war-declaring power only through a formal declaration, they argue that congressional au- . thorization cannot, as a matter of law, be inferred from military appropriations or other war-implementing legislation that does not contain an express and explicit authorization for the making of war by the President. Putting aside for a moment the explicit authorization of the Tonkin Gulf Resolution, we disagree with appellants' interpretation of the declaration clause for neither the language nor the purpose underlying that provision prohibits an inference of the fact of authorization from such legislative action as we have in this instance. The framers' intent to vest the war power in Congress is in no way defeated by permitting an inference of authorization from legislative action furnishing the manpower and materials of war for the protracted military operation in Southeast Asia.

In response to the demands of the military operations the executive during the 1960s ordered more and more men and material Into the war zone; and congressional appropriations have been commensurate with each new level of fighting. Until 1965. defense appropriations had not earmarked funds for Vietnam. In May of that year President Johnson asked Congress for an emergency supplemental appropriation "to provide our forces [then numbering 35,000] with the best and most modern supplies and equipment." 111 Cong. Rec. 9283 (May 4, 1965). Congress appropriated $700 million for use "upon determination by the President that such action is necessary in connection with military activities in Southeast Asia." Pub. L. 89-18, 79 Stat. 109 (1965). Appropriation acts in Vietnam. The 1967 appropriations act, for example, declared Congress' "frm intention to each subsequent year explicitly authorized expenditures for men and material sent to provide all necessary support for members of the Armed Forces of the United States fighting in Vietnam" and supported "the efforts being made by the President of the United States to prevent an expansion of the war in Vietnam and to bring that conflict to an end through a negotiated settlement. ." Pub. L. 90-5, 81 Stat. 5 (1967). The district court opinion in Berk v. Laird, F. Supp. (E.D.N.Y, 1970), sets out relevant portions of each of these military appropriation acts and discusses their legislative history.

3 In H. Rep. No. 267, 90th Cong., 1st Sess. 38 (1967), in addition to extending the conscription mechanism, Congress continued a suspension of the permanent ceiling on the active duty strength of the Armed Forces, fixed at 2 million men, and replaced it with a secondary ceiling of 5 million. The House Report, recommending extension of the draft concluded that the permanent manpower limitations "are much lower than the currently required strength." The Report referred to President Johnson's selective service message which said, that without the draft we cannot realistically expect to meet our present commitments or the requirements we can now foresee and that volunteers alone could be expected to man a force of little more than 2.0 million. The present number of personnel on active duty is about 3.3 million and it is scheduled to reach almost 3.5 million by June, 1968 if the present conflict is not concluded by then." H. Rep. No. 267, 90th Cong., 1st Sess. 38, 41 (1967).

The choice, for example, between an explicit declaration on the one hand and a resolution and war-implementing legislation, on the other, as the medium for expression of congressional consent involves "the exercise of a discretion demonstrably committed to the... legislature," Baker v. Carr, supra at 211, and therefore, invokes the political question doctrine. 1oblaw!

Such a choice involves an important area of decision making in which, through mutual influence and reciprocal action between the President and the Congress, policies governing the relationship between this country and other parts of the world are formulated in the best interests of the United States. If there can be nothing more than minor military operations conducted under any circumstances, short of an express and explicit declaration of war by Congress, then extended military, operations could not be conducted even though both the Congress and the President were agreed that they were necessary and were also agreed that a formal declaration of war would place the nation in a posture in its international relations which would be against its best interests. For the judicial branch to enunciate and enforce such a standard would be not only extremely unwise but also would constitute a deep invasion of the political question domain. As the Government says, “. . . decisions regarding the form and substance of congressional enactments authorizing hostilities are determined by highly complex considerations of diplomacy, foreign policy and military strategy inappropriate to judicial inquiry." It would, indeed, destroy the flexibility of action which the executive and legislative branches must have in dealing with other sovereigns. What has been said and done by both the President and the Congress in their collaborative conduct of the military operations in Vietnam implies a consensus on the advisability of not making a formal declaration of war because it would be contrary to the interests of the United States to do so. The making of a policy decision of that kind is clearly within the constitutional domain of those twɑ branches and is just as clearly not within the competency or power of the judiciary.

Beyond determining that there has been some mutual participation between the Congress and the President, which unquestionably exists here, with action by the Congress sufficient to authorize or ratify the military activity at issue, it is clear that the constitutional propriety of the means by which Congress has chosen to ratify and approve the protracted military operations in Southeast Asia is a political question. The form which congressional authorization should take is one of policy, committed to the discretion of the Congress and outside the power and competency of the judiciary, because there are no intelligible and objectively manageable standards by which to judge such actions. Baker v. Carr, supra, at 217; Powell v. McCormack, supra, at 518.

In light of the adoption by Congress of the Tonkin Gulf Resolution, and the clear evidence of continuing and distinctly expressed participation by the legislative branch in the prosecution of the war, I agree that the judgments below must be affirmed,

Hon. J. WILLIAM FULBRIGHT,

THE AMERICAN LEGION, Washington, D.C., October 7, 1971.

Chairman, Senate Committee on Foreign Relations,
New Senate Office Building,

Washington, D.C.

DEAR CHAIRMAN FULBRIGHT: Enclosed is a copy of resolution No. 499 adopted by the National Convention of The American Legion last month which is selfexplanatory.

I would appreciate your including this resolution in the transcript of the hearings your Committee is presently holding on S. 731, S.J. Res. 18 and S.J. Res. 59.

Sincerely yours,

HERALD E. STRINGER, Director, National Legislative Commission.

RESOLUTION

Whereas, continuation of U.S. current troop commitments to the North Atlantic Treaty Organization and the unrestricted deployment and use of such troops

by our Commander-in-Chief, the President of the United States, is necessary for the continued security and welfare of Free Europe and in the best interest of the United States; and

Whereas, efforts have recently been made by some members of the U.S. Senate to compel the President of the United States to reduce, unilaterally, American military forces in NATO by one-half and to restrict and limit his Constitutional authority as Commander-in-Chief of our Armed Forces; Now, therefore, be it

Resolved, By The American Legion in National Convention assembled in Houston, Texas, August 31-September 1, 2, 1971, that we oppose and condemn such efforts on the part of members of the U.S. Congress, and we wholeheartedly approve and support the action of the majority of the United States Senate in defeating this proposal; and, be it further

Resolved, That we call upon the Congress of the United States to support the President in the discharge and execution of his Constitutional duties as Commander-in-Chief of our Armed Forces.

CONGRESS AND THE WAR Power

(By Louis Fisher, Congressional Research Service, The Library of Congress), A paper presented to the Center for the Study of Democratic Institutions, Santa Barbara, California, July 28, 1971. Copyright 1971, Center for the Study of Democratic Institutions.

More by tradition and pre-emption than from a reading of the Constitution, foreign policy has tended to become a Presidential preserve. For the past several years this historic shift of power has been challenged by an unusual alliance, including conservatives and liberals, Republicans and Democrats. Indeed, it is the "high flying prerogative men" (Professor Edward Corwin's phrase to describe those who defended Truman's dispatch of troops to Korea, without prior congressional approval) who have recently become the most vociferous critics of Presidential war powers.

Arthur Schlesinger, Jr., for instance, in an address before the American Enterprise Institute in 1966, counseled that "something must be done to assure the Congress a more authoritative and continuing voice in fundamental decisions in foreign policy." In February 1967, Henry Steele Commager ajpeared before the Senate Foreign Relations Committee to urge that there be "a reconsideration of the relationship of the executive and the legislative branches," particularly the President and the Senate in the conduct of foreign relations. In March 1969, at the Congressional Conference on the Military Budget and National Priorities, scholars and scientists from both parties called upon Congress to reassert its control over defense spending and the scope of international commitments. Senator J. W. Fulbright, who had written in the Fall 1961 issue of the Cornell Law Quarterly that "for the existing requirements of American foreign policy we have hobbled the President by too niggardly a grant of power," now finds himself in the forefront of those who are trying to place limits on the President.1

The time is certainly long overdue for reassessing Congress' role in the war power and in foreign policy generally. Holbert Carroll, in his study on Congress and foreign affairs. estimated that the proportion of bills concerning international matters in 1925 was not more than one in twenty-five. The situation since World War II has been radically different, with about half the standing committees now playing some role in international affairs. Not only the Senate but also the House must assume new responsibilities. Dean Acheson has remarked that the "time has passed when the Senate monopolized the congressional function in this field, since it is the execution of policy, calling for legal authority, funds, and men, which is the ultimate test of success or failure.”a

1 Arthur M. Schlesinger, Jr. and Alfred de Grazia, Congress and the Presidency: Their Role in Modern Times (Washington, D.C.: American Enterprise Institute, 1967), p. 28; Commager's testimony: Changing American Attitudes Toward Foreign Policy, hearings before the Senate Foreign Relations Committee, 90th Cong., 1st Sess., p. 21 (1967); March 1909 Conference: "The Power of the Pentagon." The Progressive (June 1969) and American Militarism: 1970, ed. Erwin Knoll and Judith Nies McFadden (New York: The Viking Press, 1969); J. William Fulbright. "American Foreign Policy in the 20th Century Under an 18th-Century Constitution." 47 Cornell L. Q. 1. 2 (Fall 1961).

2 Holbert N. Carroll, The House of Representatives and Foreign Affairs (Boston: Little, Brown. 1966), p. 20; Dean Acheson, A Citizen Looks at Congress (New York: Harper & Bros., 1956), p. 83.

If the President chooses to ignore Congress while acting in external affairs, his domestic and foreign programs become targets for reprisal. The feeling among legislators that President Johnson overreached himself in Southeast Asia, and failed to treat Congress as a coequal branch, produced a voting record marked by negativism and defiance. Unable to control the President's policy in Vietnam, liberal legislators turned against other Administration programs. Deep slashes in foreign aid, for example, were interpreted by Senator Joseph Clark in 1967 as a method of "getting back at the President for the conduct of the war in Vietnam." When President Nixon delivered a broad-brush attack on critics of the military in a June 1969 address, his foreign aid program was immediately placed in jeopardy by legislators who found the speech offensive.'

The Senate's rejection of Clement F. Haynsworth, Jr. and G. Harrold Carswell also reflects a reassertion of legislative prerogatives. President Nixon, in a letter to Senator William Saxbe, contended that Senate opposition to his choice of nominees was somehow a usurpation of his constitutional responsibilities. Two rejections in a row should have convinced the President that the Senate also has responsibilities and is willing to discharge them. Senator Frank Church said that the Senate had "pulled off the shelf its all-but-atrophied confirmation power" as one step in restoring a better balance between Congress and the President. After the Senate confirmed Judge Harry A. Blackmum, Senator Marlow Cook declared that Senatorial assertion against "an all-powerful Exeutive, whoever he may be, whether it is in foreign affairs or in Supreme Court appointments, is good for the country.'

II.

The claims by recent U.S. Presidents to a virtual free hand in conducting foreign affairs owe much in constitutional law to a landmark Supreme Court decision of 1936, United States v. Curtiss-Wright. Justice Sutherland, speaking for the Court, said that legislation in the international field must often accord the President "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." All that was necessary, in this particular case, was for the Court to uphold the right of Congress to delegate embargo powers to the President. Instead, Justice Sutherland added several pages of obiter dicta on the far-reaching dimensions of executive power in international affairs, referring to "this vast external realm, with its important, complicated, delicate and manifold problems," and stating that the President, not Congress, has "the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of

war.

These sweeping assertions have since been used to justify an expansion of Presidential war powers, based not on new powers delegated by Congress but rather on inherent executive powers. In fact, Sutherland's remarks should be taken as dicta and nothing more. Their source is not in the Constitution but in Sutherland's own political philosophy. He had earlier served on the Senate Foreign Relations Committee and was a forceful exponent of the use of American power abroad. His biographer, Joel Francis Paschal, has written that Sutherland had "long been the advocate of vigorous diplomacy which strongly, even belligerently, called always for an assertion of American rights." Many of the arguments in Sutherland's book, Constitutional Power and World Affairs (1919), were to reappear two decades later in the Curtiss-Wright decision.

Sutherland's ironclad distinction between foreign and domestic problems seems increasingly artificial to most observers today. Actors taken on behalf of "national security" can easily overwhelm basic domestic freedoms. It was Justice Jackson, in the 1950 Knauff v. Shaughnessy decision, who said that "Security is like liberty in that many are the crimes committed in its name." More recently, in the New York Times decision, Justice Black joined with five members of the Court to strike down the Government's effort to prevent publication of the Pentagon papers. "The word 'security', he wrote, "is a broad, vague generality whose con

3 U.S. Commitments to Foreign Powers, hearings before the Senate Foreign Relations Committee. 90th Cong., 1st Sess., p. 105 (1967); The New York Times, June 12. 1969. 1:7. Letter to Saxbe: Wklu. Comp. of Pres. Doc., Vol. 6. No. 14, p. 467 (April 1, 1970): Church: 116 Cong. Rec. $6333 (daily ed., April 30, 1970); Cook: 116 Cong. Rec. S7203 (daily ed.. May 15, 1970).

United States v. Curtiss-Wright. 299 U.S. 304, 319–320.

Joel Francis Paschal, Mr. Justice Sutherland: A Man Against the State (Princeton: Princeton University Press, 1951), p. 93: George Sutherland, Constitutional Power and World Affairs (New York: Columbia University Press, 1919).